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293 Nebraska Reports

LINDSAY v. FITL

Cite as 293 Neb. 677

Stephen Lindsay, Special Administrator

of the Estate of Mary F. Lindsay, et al., 

appellants, v. Patricia M. Fitl, Personal

Representative of the Estate of

James G. Fitl, appellee.

___ N.W.2d ___

Filed May 27, 2016. No. S-15-757.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings 

and admitted evidence show that there is no genuine issue as to any 

material facts or as to the ultimate inferences that may be drawn from 

the facts and that the moving party is entitled to judgment as a matter 

of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Summary Judgment: Motions to Dismiss: Claims: Parties. If, on 

a motion asserting the defense to dismiss for failure of the pleading 

to state a claim upon which relief can be granted, matters outside the 

pleading are presented to and not excluded by the court, the motion shall 

be treated as one for summary judgment and disposed of as provided in 

Neb. Rev. Stat. §§ 25-1330 to 25-1336 (Reissue 2008), and all parties 

shall be given reasonable opportunity to present all material made pertinent to such a motion by statute.

4. Standing: Jurisdiction. Standing requires that a litigant have a personal 

stake in the outcome of a controversy that warrants invocation of a 

court’s jurisdiction and justifies exercise of the court’s remedial powers 

on the litigant’s behalf.

5. Standing: Claims: Parties: Proof. To have standing, a litigant must 

assert its own rights and interests and demonstrate an injury in fact, 

which is concrete in both a qualitative and temporal sense.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/27/2016 09:05 AM CDT
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LINDSAY v. FITL

Cite as 293 Neb. 677

6. Corporations: Actions: Parties: Proof. In order to establish an individual harm to support a claim, the shareholder must allege a separate 

and distinct injury or a special duty owed by the party to the individual shareholder.

7. Corporations: Actions: Parties: Damages. Even if a shareholder establishes that there was a special duty, he or she may only recover for damages suffered in his or her individual capacity, and not injuries common 

to all the shareholders.

8. Corporations: Actions: Parties. Even though all shares of stock of a 

corporation may be owned by a small number of shareholders or by 

one shareholder alone, a shareholder cannot sue individually concerning 

rights which belong to the corporation.

Appeal from the District Court for Douglas County: Marlon

A. Polk, Judge. Affirmed.

Thomas M. White, C. Thomas White, and Amy S. Jorgensen, 

of White & Jorgensen, for appellants.

Michael S. Degan, of Husch Blackwell, L.L.P., for appellee.

Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, 

Stacy, and Kelch, JJ.

Kelch, J.

NATURE OF CASE

Mary F. Lindsay, Mary H. Lindsay, Daniel Lindsay, Michael 

Lindsay, Alice Lindsay, Stephen Lindsay, and Marguerite Ford 

(collectively the Lindsays) filed suit against James G. Fitl (Fitl) 

for breach of various fiduciary duties. A motion to dismiss was 

granted on the bases that the Lindsays’ claims were derivative and that they were divested of their standing when the 

Federal Deposit Insurance Corporation (FDIC) filed an action 

in federal court. Now, the Lindsays have appealed to this court. 

We affirm.

FACTS

This case arises out of the Lindsays’ claim that Fitl, another 

minority shareholder, breached fiduciary duties in connection 
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LINDSAY v. FITL

Cite as 293 Neb. 677

with his role as an officer and director of Mid City Bank, Inc., 

and the 304 Corporation. The Lindsays were minority shareholders of the 304 Corporation, a Nebraska corporation, its 

principal asset being Mid City Bank.

Although unrelated to issues presented in this appeal, we 

note that the Lindsays have twice amended their complaint 

to reflect substitutions of the parties. Mary F. Lindsay passed 

away in 2013, and in August 2014, Stephen Lindsay, as 

the special administrator of her estate, was substituted in 

her place. Defendant Fitl also passed away, and in the third 

amended complaint, Patricia M. Fitl, the personal representative of Fitl’s estate (personal representative), was substituted 

in his place.

In August 2010, the Nebraska Department of Banking and 

Finance and the FDIC began a joint examination of the condition of Mid City Bank. On November 4, 2011, the Department 

of Banking and Finance appointed the FDIC as receiver of the 

bank, stating as its reason that “‘large commercial real estate 

loan and poor management practices . . . led to a deterioration 

of the bank’s capital’” and that the department was left with 

“‘no option but to declare the insolvent institution receivership.’” After some time, the bank reopened, and the receiver 

continued to operate the bank, which was in good standing as 

of the date of the hearing. The FDIC did not place any of the 

304 Corporation’s other assets into receivership.

On July 17, 2012, the Lindsays filed their first complaint 

against defendant Fitl, now defendant personal representative, alleging breach of fiduciary duties. The complaint was 

amended with minor changes in August and October 2014 and 

in April 2015. The Lindsays did not allege breach of contract 

in any version of the complaint.

On November 4, 2014, the FDIC filed a federal action 

against Fitl’s estate in the U.S. District Court for the District 

of Nebraska, in case No. 8:14-cv-00346, alleging, among other 

things, that Fitl “was grossly negligent and breached his fiduciary duties” and that because of the receivership, and pursuant 
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LINDSAY v. FITL

Cite as 293 Neb. 677

to 12 U.S.C. § 1821(d)(2)(A)(i) (2012), the FDIC succeeded 

to all rights, titles, powers, and privileges of Mid City Bank 

and its shareholders, accountholders, and depositors, “including, but not limited to, [the bank’s] claims against [its] former 

directors and officers.”

On April 16, 2015, the personal representative filed a 

motion to dismiss the third amended complaint pursuant to 

Neb. Ct. R. Pldg. § 6-1112(b)(6). In support of this motion, 

the personal representative alleged that all the claims asserted 

by the Lindsays in their third amended complaint were “the 

exclusive province of the [FDIC], as receiver for Mid-City 

Bank,” and were the subject of pending litigation in federal court.

On May 27, 2015, before the hearing on the personal representative’s motion to dismiss, the Lindsays filed a motion 

for leave to file a fourth amended complaint. The proposed 

fourth amended complaint merely added an allegation that the 

Lindsays filed a claim with the personal representative, which 

was disallowed.

The hearing on the personal representative’s motion to dismiss was held on June 16, 2015. Although the Lindsays had 

not previously alleged a breach of contract, they argued at the 

hearing that Fitl breached the “Fitl Lindsay 304 Corporation 

Buy-Sell Agreement” (Buy-Sell Agreement).

On July 29, 2015, the district court granted the personal 

representative’s motion to dismiss, finding that the Lindsays’ 

claims were derivative of the corporation and that as a result 

of the FDIC’s federal action, the Lindsays’ claims were exclusively vested with the FDIC. Therefore, the Lindsays had no 

standing to pursue them. The district court also denied the 

Lindsays’ motion to amend and found that any further amendments would be futile due to the FDIC’s federal action. The 

trial court signed and filed the same order again on August 3, 

without any explanation. The Lindsays appeal from both the 

July 29 and August 3 orders.
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LINDSAY v. FITL

Cite as 293 Neb. 677

ASSIGNMENTS OF ERROR

The Lindsays assign, combined and restated, that the district 

court erred (1) in finding that their claims were derivative of 

the corporation, (2) in finding that the FDIC’s federal action 

divested them of their standing, and (3) in stating that further 

amendment would be futile.

STANDARD OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from the 

facts and that the moving party is entitled to judgment as a 

matter of law. Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 

850 (2016). In reviewing a summary judgment, an appellate 

court views the evidence in the light most favorable to the 

party against whom the judgment was granted and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence. Id.

ANALYSIS

[3] As an initial matter, we must determine whether the 

district court’s decision to receive the Buy-Sell Agreement 

transformed the motion to dismiss into a motion for summary 

judgment. Section 6-1112(b) provides, in relevant part:

If, on a motion asserting the defense . . . to dismiss for 

failure of the pleading to state a claim upon which relief 

can be granted, matters outside the pleading are presented 

to and not excluded by the court, the motion shall be 

treated as one for summary judgment and disposed of as 

provided in §§ 25-1330 to 25-1336, and all parties shall 

be given reasonable opportunity to present all material 

made pertinent to such a motion by statute.

At the commencement of the hearing, the district court took 

judicial notice of documents within the public record. However, 

later in the proceedings, the district court received an affidavit 

of Stephen Lindsay and the Buy-Sell Agreement.
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LINDSAY v. FITL

Cite as 293 Neb. 677

For purposes of a motion to dismiss, “‘“the court generally must ignore materials outside the pleadings, but it may 

consider some materials that are part of the public record or 

do not contradict the complaint, as well as materials that are 

necessarily embraced by the pleadings.”’” DMK Biodiesel 

v. McCoy, 285 Neb. 974, 980, 830 N.W.2d 490, 496 (2013), 

quoting Miller v. Redwood Toxicology Laboratory, Inc., 688 

F.3d 928 (8th Cir. 2012). These documents embraced by 

the complaint are not considered matters outside the pleading. Documents embraced by the pleadings are materials 

“‘“alleged in a complaint and whose authenticity no party 

questions, but which are not physically attached to the pleading.”’” Id., citing Enervations, Inc. v. Minnesota Mining, 

380 F.3d 1066 (8th Cir. 2004), and quoting Ashanti v. City of 

Golden Valley, 666 F.3d 1148 (8th Cir. 2012). The Buy-Sell 

Agreement would be a “matter outside the pleading,” since 

it was not referenced by the third amended complaint. With 

this court’s having already determined that the word “shall” 

is mandatory and not permissive, in regard to § 6-1112(b), 

see DMK Biodiesel v. McCoy, supra, the personal representative’s motion to dismiss became a motion for summary judgment.

We now consider the Lindsays’ first two assignments that 

the district court erred in finding (1) that their claims were 

derivative of the corporation and (2) that the FDIC’s federal 

action divested them of their standing.

[4,5] Standing requires that a litigant have a personal stake 

in the outcome of a controversy that warrants invocation of a 

court’s jurisdiction and justifies exercise of the court’s remedial powers on the litigant’s behalf. In re Invol. Dissolution 

of Wiles Bros., 285 Neb. 920, 830 N.W.2d 474 (2013). To 

have standing, a litigant must assert its own rights and interests and demonstrate an injury in fact, which is concrete 

in both a qualitative and temporal sense. Butler Cty. Sch. 

Dist. v. Freeholder Petitioners, 283 Neb. 903, 814 N.W.2d 

724 (2012).
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Cite as 293 Neb. 677

Both parties agree that the FDIC took control of Mid City 

Bank pursuant to 12 U.S.C. § 1821, which provides:

(d) Powers and duties of Corporation as conservator 

or receiver

. . . .

(2) General powers

(A) Successor to institution

The Corporation shall, as conservator or receiver, and 

by operation of law, succeed to—

(i) all rights, titles, powers, and privileges of the 

insured depository institution, and of any stockholder, 

member, accountholder, depositor, officer, or director of 

such institution with respect to the institution and the 

assets of the institution[.]

[6,7] The personal representative argues that 12 U.S.C. 

§ 1821(d)(2)(A)(i) grants exclusive jurisdiction of shareholder 

claims to the FDIC and that because the FDIC filed its lawsuit, the Lindsays now lack standing to bring an action which 

is derivative in nature. A derivative action is an action brought 

by a shareholder to enforce a cause of action belonging to 

the corporation. McGill v. Lion Place Condo. Assn., 291 

Neb. 70, 864 N.W.2d 642 (2015). In countering, the Lindsays 

argue that their claims are direct, not derivative, by stating 

in their brief: “Fitl breached the [Buy-Sell] Agreement by 

fraudulently misrepresenting facts affecting the value of the 

304 Corporation . . . . These breaches create direct claims for 

breach of contract which are separate and distinct from the 

claims of other shareholders.” Brief for appellants at 6. They 

assert that if a shareholder can establish an individual cause 

of action because the harm to the corporation also damaged 

the shareholder in his or her individual capacity, then the 

individual can pursue his or her claims. In order to establish 

an individual harm to support a claim, the shareholder must 

allege a separate and distinct injury or a special duty owed by 

the party to the individual shareholder. Freedom Fin. Group 

v. Woolley, 280 Neb. 825, 792 N.W.2d 134 (2010). Even 
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Cite as 293 Neb. 677

if a shareholder establishes that there was a special duty, 

he or she may only recover for damages suffered in his or 

her individual capacity, and not injuries common to all the 

shareholders. Id. The Lindsays contend that the breach of the 

Buy-Sell Agreement is a distinct injury and not common to 

all shareholders.

The personal representative points out that not one of 

the Lindsays’ four filed complaints or the proposed fourth 

amended complaint alleges the existence of or breach of a 

Buy-Sell Agreement. The Lindsays’ complaint places the personal representative on notice that their claim is in tort for 

breach of fiduciary duty, not a contract action. Although the 

rules of notice pleading have now been liberalized, the pleading must give fair notice of the claims asserted. See, Davio v. 

Nebraska Dept. of Health & Human Servs., 280 Neb. 263, 786 

N.W.2d 655 (2010); Mahmood v. Mahmud, 279 Neb. 390, 778 

N.W.2d 426 (2010). The Lindsays argued for the first time at 

the hearing on the personal representative’s motion to dismiss 

that their theory of recovery was for contract, not tort. With the 

Lindsays’ third amended complaint clearly alleging a breach 

of fiduciary duty, it did not provide “fair” notice of a contract 

claim. The district court properly proceeded to evaluate the 

Lindsays’ third amended complaint as alleging a breach of 

fiduciary duty.

[8] The Lindsays’ third amended complaint alleges that 

as shareholders, they incurred injury due to the loss in value 

of their 304 Corporation stock caused by the breach of fiduciary duties by Fitl as an officer and director of Mid City 

Bank and the 304 Corporation. Previously, this court stated 

that “‘[e]ven though all shares of stock of a corporation 

may be owned by a small number of shareholders or by one 

shareholder alone, a shareholder cannot sue individually concerning rights which belong to the corporation.’” Freedom 

Fin. Group v. Woolley, 280 Neb. at 833, 792 N.W.2d at 141, 

quoting Meyerson v. Coopers & Lybrand, 233 Neb. 758, 448 

N.W.2d 129 (1989). Further, a “‘“diminution in value of a 
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Cite as 293 Neb. 677

stockholder’s investment is a concomitant of the corporate 

injuries resulting in lost profits.”’” Id. In this instance, the 

Lindsays’ breach of fiduciary duties claim as alleged is similar 

to all other shareholders and did not arise from a special duty, 

since the injury was not “separate and distinct.” Accordingly, 

the district court correctly concluded that the Lindsays’ claims 

were derivative in nature and that as a result of the FDIC 

lawsuit, the Lindsays had no standing to bring a derivative 

action on behalf of the corporation. See, Womble v. Dixon, 752 

F.2d 80 (4th Cir. 1984); American Cas. Co. of Reading, Pa. 

v. FDIC, 713 F. Supp. 311 (N.D. Iowa 1988); Freedom Fin. 

Group v. Woolley, supra.

After viewing the pleadings and evidence admitted at the 

hearing in a light most favorable to the party against whom 

judgment was granted and giving such party the benefit of 

all reasonable inferences deducible from the evidence, we 

perceive no genuine issue as to any material facts or as to 

the ultimate inferences that may be drawn from those facts.

Thus, the personal representative was entitled to judgment 

as a matter of law. Although the district court followed a 

different standard in regard to the third amended complaint, 

no error was committed. See Hamilton Cty. EMS Assn. v. 

Hamilton Cty., 291 Neb. 495, 866 N.W.2d 523 (2015) (where 

record demonstrates that decision of trial court is ultimately 

correct, although such correctness is based on ground or reason different from that assigned by trial court, appellate court 

will affirm).

Lastly, the Lindsays contend that the district court erred 

when it stated that further amendment would be futile. We read 

this assignment of error to effectively be a claim that the district court erred when it denied the Lindsays an opportunity to 

amend their complaint yet again to allege a contract cause of 

action. We reject this assignment of error.

The Lindsays first raised the contract theory in argument 

at the summary judgment hearing. However, the record shows 

no motion seeking to set aside the judgment or for leave to 
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Cite as 293 Neb. 677

amend based on contract either before or after summary judgment had been entered. So there was no matter on which to 

rule. The district court did not err when it merely commented 

on a hypothetical amended complaint.

CONCLUSION

We determine that the district court did not err in granting a judgment which dismissed the Lindsays’ third amended 

complaint.

Affirmed.